Petition for Writ of Certiorari — Melvin Trotter, Petitioner v. Florida, et al.

No. ______

______________________________________________________________

In the Supreme Court of the United States

______________________________________________________________

MELVIN TROTTER,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

___________________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

FLORIDA SUPREME COURT

_____________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

______________________________________________________________

CAPITAL CASE

DEATH WARRANT SIGNED

Execution Scheduled: February 24, 2026, at 6:00 PM ET

_____________________________________________________________

MELODY JACQUAY-ACOSTA

*ANN MARIE MIRIALAKIS

MAHHAM SYED

CAPITAL COLLATERAL REGIONAL

COUNSEL - MIDDLE REGION

12973 N. Telecom Parkway

Temple Terrace, Florida 33637

813-558-1600

Support@ccmr.state.fl.us

jacquay@ccmr.state.fl.us

mirialakis@ccmr.state.fl.us

syed@ccmr.state.fl.us

Counsels of Record for Petitioner

*Member of the Bar of the Supreme Court

CAPITAL CASE

QUESTION PRESENTED

This Court has determined that the Baze-Glossip test applies to all Eighth

Amendment method of execution claims. This test has been expanded to encompass

as-applied challenges as well as method of execution challenges. The lower court’s

application of this test expands it further to cover challenges to the

maladministration of the lethal injection protocol. This expansion is incompatible

with any meaningful judicial scrutiny of the process, as to whether

maladministration challenges rise to the level of cruel and unusual punishment as

prohibited by the Constitution.

1. Does this Court’s precedent in Baze v. Rees and Glossip v. Gross,

apply to Eighth Amendment challenges when determining whether

maladministration of an execution protocol amounts to cruel and

unusual punishment when inmates are not seeking an alternate

method of execution, only seeking that the approved method is

followed?

ii

LIST OF PARTIES

All parties appear in the caption on the cover page.

iii

RELATED CASES

Trial and Sentencing

Circuit Court of the Twelfth Judicial Circuit, Manatee County Florida

Docket Number: 86-CF-001225-A

Case Caption: State of Florida v. Melvin Trotter aka Melvin Turner

Date of Entry of Judgement: Convicted April 9, 1987; sentence to death May

18, 1987; motion for new trial denied July 10, 1987.

Unreported

Direct Appeal

Florida Supreme Court

Docket Number: 70714

Case Caption: Melvin Trotter v. State of Florida

Date of Entry of Judgement: Affirmed in part, remanded in part reversing

sentence of death and remanding for resentencing December 20, 1990;

rehearing Denied April 4, 1991

Trotter v. State, 576 So. 2d 691 (Fla. 1990)

Resentencing

Circuit Court of the Twelfth Judicial Circuit, Manatee County Florida

Docket Number: 86-CF-001225-A

Case Caption: State of Florida v. Melvin Trotter aka Melvin Turner

Date of Entry of Judgement: Sentenced to death July 23, 1993

Unreported

Direct Appeal from Resentencing

Florida Supreme Court

Docket Number: 82142

Case Caption: Melvin Trotter v. State of Florida

Date of Entry of Judgement: Affirmed December 16, 1996; rehearing denied

April 4, 1997.

Trotter v. State, 690 So. 2d 1234 (Fla. 1996)

Petition for Writ of Certiorari

United States Supreme Court

Docket Number: 97-5118

Case Caption: Melvin Trotter v. Florida

Date of Entry of Judgement: Denied Oct 6, 1997.

Trotter v. Fla., 522 U.S. 876, 118 S. Ct. 197, 139 L. Ed. 2d 134 (1997)

iv

Postconviction Motion to Vacate Judgement and Sentence with Special

Request for Leave to Amend & Second Amended Postconviction Motion to

Vacate Judgement and Sentence

Circuit Court of the Twelfth Judicial Circuit, Manatee County Florida

Docket Number: 86-CF-001225-A

Case Caption: State of Florida v. Melvin Trotter

Date of Entry of Judgement: Denied March 20, 2003

Unreported

Defendant’s Successive 3.851 Motion for Postconviction Relief

Determination of Mental Retardation as a Bar to Execution

Circuit Court of the Twelfth Judicial Circuit, Manatee County Florida

Docket Number: 86-CF-001225-A

Case Caption: State of Florida v. Melvin Trotter

Date of Entry of Judgement: Denied July 7, 2005

Unreported

for

Appeal from Denial of Postconviction Motion to Vacate Judgement and

Sentence and Consolidated State Habeas Petition

Florida Supreme Court

Docket Number: SC03-735, SC03-1967

Case Caption: Melvin Trotter v. State of Florida, Melvin Trotter v. Jame R.

McDonough, etc.

Date of Entry of Judgement: Sentence affirmed; habeas petition denied May

25, 2006.

Trotter v. State, 932 So. 2d 1045, 1047 (Fla. 2006)

Federal Habeas Corpus Petition

United States District Court of Appeals, Middle District of Florida, Tampa

Division

Docket Number: 8:06-cv-1872-T-17MSS

Case Caption: Melvin Trotter v. Secretary, Department of Corrections

Date of Entry of Judgement: Denial affirmed, November 6, 2007.

Trotter v. Sec'y, Dep't of Corr., No. 8:06-CV-1872T-17MSS, 2007 WL 3326672,

at *33 (M.D. Fla. Nov. 6, 2007)

Appeal from Denial of Petition of Federal Habeas Corpus

United States Court of Appeals, Eleventh Circuit

Docket Number: 07-15755, 07-15755-P

Case Caption: Melvin Trotter v. Secretary, Department of Corrections

Date of Entry of Judgement: Denial affirmed July 23, 2008; rehearing denied,

September 15, 2008.

Trotter v. Sec'y, Dep't of Corr., 535 F.3d 1286, 1293 (11th Cir. 2008);

Trotter v. Sec'y, Dep't of Corr., 307 F. App'x 438 (11th Cir. 2008)

v

Petition for Writ of Certiorari

United States Supreme Court

Docket Number: 08-6797

Case Caption: Melvin Trotter v. Walter A. McNeil

Date of Entry of Judgement: Petition denied December 15, 2008.

Trotter v. McNeil, 555 U.S. 1087, 129 S. Ct. 767, 172 L. Ed. 2d 758 (2008)

Amended Successive Motion to Vacate Death Sentence

Circuit Court of the Twelfth Judicial Circuit, Manatee County Florida

Docket Number: 86-CF-001225-A

Case Caption: State of Florida v. Melvin Trotter

Date of Entry of Judgement: Denied June 13, 2008

Unreported

Appeal From Final Order Denying Defendant’s Successive Motion to Vacate

Death Sentence

Florida Supreme Court

Docket Number: SC08-1254

Case Caption: Melvin Trotter v. State of Florida

Date of Entry of Judgement: Affirmed denial April 30, 2009.

Trotter v. State, 10 So. 3d 633 (Fla. 2009)

Defendant’s Successive Rule 3.851 Motion to Vacate Sentence of Death

Circuit Court of the Twelfth Judicial Circuit, Manatee County Florida

Docket Number: 86-CF-001225-A

Case Caption: State of Florida v. Melvin Trotter

Date of Entry of Judgement: Denied March 6, 2017; rehearing denied April 17,

2017.

Unreported

Defendant’s Successive Motion to Vacate Death Sentence (Hurst)

Florida Supreme Court

Docket Number: SC17-950

Case Caption: Melvin Trotter v. State of Florida

Date of Entry of Judgement: Denied January 26, 2018

Trotter v. State, 235 So. 3d 284, 285 (Fla. 2018)

Defendant’s Demand for Additional Public Records Florida Department of

Law Enforcement

Circuit Court of the Twelfth Judicial Circuit, Manatee County Florida

Docket Number: 86-CF-001225-A

Case Caption: State of Florida v. Melvin Trotter

Date of Entry of Judgement: Denied January 29, 2026.

Unreported

vi

Defendant’s Demand for Additional Public Records Florida Department of

Corrections

Circuit Court of the Twelfth Judicial Circuit, Manatee County Florida

Docket Number: 86-CF-001225-A

Case Caption: State of Florida v. Melvin Trotter

Date of Entry of Judgement: Denied January 29, 2026.

Unreported

Defendant’s Motion for a Stay of Execution

Circuit Court of the Twelfth Judicial Circuit, Manatee County Florida

Docket Number: 86-CF-001225-A

Case Caption: State of Florida v. Melvin Trotter

Date of Entry of Judgement: Denied February 6, 2026.

Unreported

Defendant’s Successive Rule 3.851 Motion to Vacate Sentence of Death

Circuit Court of the Twelfth Judicial Circuit, Manatee County Florida

Docket Number: 86-CF-001225-A

Case Caption: State of Florida v. Melvin Trotter

Date of Entry of Judgement: Denied February 6, 2026.

Unreported

Appeal from Denial of Successive Rule 3.851 Motion to Vacate Defendant’s

Sentence of Death After a Signed Death Warrant and Motion for Stay of

Execution

Florida Supreme Court

Docket Number: SC2026-0214, SC2026-0217

Case Caption: Melvin Trotter v. State of Florida v. Secretary, Department of

Corrections

Date of Entry of Judgement: Denied February 17, 2026.

MELVIN TROTTER, Appellant, v. STATE OF FLORIDA, Appellee. MELVIN

TROTTER, Petitioner, No. SC2026-0214, 2026 WL 444544, at *1 (Fla. Feb. 17,

2026)

vii

TABLE OF CONTENTS

Contents

Page(s)

QUESTION PRESENTED ............................................................................................ ii

LIST OF PARTIES ....................................................................................................... iii

RELATED CASES ........................................................................................................ iv

TABLE OF CONTENTS ............................................................................................. viii

INDEX TO APPENDIX ................................................................................................ ix

TABLE OF AUTHORITIES .......................................................................................... x

PETITION FOR WRIT OF CERTIORARI ................................................................... 1

DECISIONS AND ORDERS BELOW .......................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL PROVISIONS INVOLVED......................................................... 1

STATEMENT OF THE CASE ....................................................................................... 2

REASONS FOR GRANTING THIS PETITION ........................................................... 6

I.

TROTTER’S CASE PRESENTS AN EXTREME EXCEPTION TO THE

PRESUMPTION AGAINST JUDICIAL INTERVENTION IN THE

ELEVENTH HOUR BEFORE AN EXECUTION.............................................. 6

II.

MALADMINISTRATION CHALLENGES DIFFER IN NATURE TO

METHODS-OF-EXECUTION AND AS-APPLIED CHALLENGES. ............... 8

a. Baze v. Rees and this Court’s precedent cited within, provides

constitutional interpretations applicable to maladministration

challenges. ................................................................................................ 8

viii

b. Trotter has pled facts sufficient for a finding that Florida Department of

Corrections’ protocol deviations amount to risk that is sure or very

likely to cause serious illness and needless suffering, giving rise to

imminent danger during his execution on February 24th. ................... 10

III.

THE TWO PRONGS OF THE BAZE-GLOSSIP TEST DO NOT ENCOMPASS

MALADMINISTRATION CHALLENGES TO ACCEPTED PROTOCOLS. ......

........................................................................................................................... 14

CONCLUSION............................................................................................................. 16

INDEX TO APPENDIX

[IN SEPARATE VOLUME]

Appendix A: Opinion of the Florida Supreme Court

Appendix B: Order (1) Denying Defendant’s Fourth “Successive Rule 3.851 Motion

to Vacate Sentence of Death” After a Signed Death Warrant and (2) Denying

Defendant’s Motion for a Stay of Execution

Appendix C: Signed Affidavit, Dr. Daniel Buffington

Appendix D: FDOC Log Part 1

Appendix E: FDOC Log Part 2

ix

TABLE OF AUTHORITIES

Cases

Baze v. Rees, 553 U.S. 3520 (2008) ......................................................... 3-4, 8-10, 13-16

Bucklew v. Precythe, 587 U.S. 119 (2019) .......................................................... 6, 13-14

Farmer v. Brennan, 511 U.S. 825 (1994) ................................................................. 9-10

Ford v. Wainwright, 477 U.S. 399, 410 (1986) ............................................................. 5

Glossip v. Gross, 576 U.S. 863 (2015) ............................................................. 3-4, 14-16

Heath v. State, 2026 WL 320522, at *3 (Fla. Feb. 3, 2026) .......................................... 4

Helling v. McKinney, 509 U.S. 25 (1993) ...................................................................... 9

Hilton v. Braunskill, 481 U.S. 770 (1987) ..................................................................... 6

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) .................................... 9-10

Nken v. Holder, 556 U.S. 418 (2009) ............................................................................. 6

Walls v. Dixon, No.4:25-cv-0488, ECF 1 (N.D. Fla. Nov. 26, 2025) ............................. 2

Constitutional Provisions

U.S. Const. amend. VIII .............................................................. 1, 5, 7, 8, 9, 10, 14, 15

U.S. Const. amend. XIV ................................................................................................. 1

Statutes

28 U.S.C. § 1257(a) ........................................................................................................ 1

Ch. 9169 § 6124 Fla. Stat. (1924) ................................................................................ 16

Ch. 9169 § 6125 Fla. Stat. (1924) ................................................................................ 16

x

Other Authorities

Calvin Hwang, PharmD, BCEMP et al., Impact of paralytic choice on postintubation

sedation and analgesia in the emergency department, 82 (suppl 3), Am J. HealthSyst Pharm, Jun. 1, 2025, at 2929. ......................................................................... 11

xi

PETITION FOR WRIT OF CERTIORARI

Melvin Trotter respectfully petitions for a writ of certiorari to review a

judgment of the Supreme Court of Florida.

DECISIONS AND ORDERS BELOW

The opinion of the Florida Supreme Court is attached as Appendix

A. The order of the Twelfth Judicial Circuit of the State of Florida, Manatee County,

(warrant court) is unpublished and attached as Appendix B.

JURISDICTION

The judgment of the Florida Supreme Court was entered on February 17,

2026. This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment provides:

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

The Fourteenth Amendment provides, in relevant part:

No State shall . . . deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

1

STATEMENT OF THE CASE

Melvin Trotter is scheduled to be executed on February 24th in Florida State

Prison by a Department of Corrections who has neither acknowledged nor refuted the

documented use of expired etomidate during seven executions between January 1

through September 30, 2025.

A glimpse of the drug logs was uncovered during Frank Walls 1 post-warrant

litigation in November 2025, which provides documentation of the three drugs used

during Florida’s three-drug-protocol between January 1, 2025 and September 30,

2025. The drug logs documented etomidate, the first drug of the protocol, which had

either reached its expiration or was expired, as being “used” during seven dates which

correspond with dates of executions between January 1 and September 30, 2025.

After Florida’s governor signed Petitioner’s warrant scheduling his execution,

Petitioner was prevented from obtaining additional records from the Florida

Department of Corrections (“FDOC”) and Department of Law Enforcement

documenting and logging the drugs used for the additional six executions which took

place in 2025 in Florida.

Based on the information which was gleaned from FDOC’s records, Petitioner

consulted and retained clinical pharmacologist Dr. Daniel Buffington. Dr. Buffington

provided an affidavit which explains the significance of the use of expired drugs. The

use of the lethal drugs “that are expired may have reduced pharmacologic effect or

produce unanticipated or unnecessary complications.” Appendix C, Signed Affidavit,

1 Walls v. Dixon, No.4:25-cv-0488, ECF 1 (N.D. Fla. Nov. 26, 2025)

2

Dr. Daniel Buffington, at ¶ d. “Such an error or deviation could result in unnecessary

pain or discomfort or an unexpected termination of the execution procedure prior to

the inmate’s death.” Appendix C, Signed Affidavit, Dr. Daniel Buffington, ¶ d.

The significance of etomidate which has reached or surpassed its expiration

cannot be overlooked. Etomidate is the first drug of the protocol used to cause

“unconsciousness” of the inmate during their execution. Unconsciousness is so

significant that this Court has considered such checks when determining whether a

method of execution violates the Eighth Amendment. See generally, Glossip v. Gross,

576 U.S. 863, 886-7 (2015); Baze v. Rees, 553 U.S. 35, 120 (2008) (Ginsburg, J. dissent)

(acknowledging Florida’s consciousness check). It is well understood the use of

etomidate is intended to render the person executed “unconscious” to alleviate the

pain of the second and third drugs killing them. However, the “consciousness” check

can no longer stand as a safeguard when the Florida Department of Corrections is

using compromised etomidate.

Etomidate is a fast and short-acting anesthetic drug. Compromised etomidate

with reduced or negative pharmacologic effect would be masked by the rocuronium

used as the second drug. Onlookers would not know that the etomidate had reduced

pharmacologic effect because the second drug, rocuronium, is the paralytic causing

muscle paralysis and the men experiencing pain would be prevented from indicating

the cruel suffering they are experiencing.

Petitioner argued to Florida’s state courts that Florida Department of

Corrections’ pattern of protocol deviation caused reason for alarm, that the

3

department of corrections had documented using expired etomidate in seven of the

thirteen executions, creating a substantial risk of unnecessary pain and suffering

during Trotter’s execution. The Florida Supreme Court denied Petitioner’s claim for

relief applying the Baze-Glossip test set by this Court. Appendix A, Melvin Trotter v.

State of Florida et al., --- So. 3d ---, 2026 WL 444544 (Fla. Feb. 17, 2026).

As to prong one, Florida Supreme Court found that Petitioner had not

demonstrated a substantial and imminent risk that is sure or very likely to cause

serious illness and needless suffering. Appendix A, Melvin Trotter v. State of Florida

et al., --- So. 3d ---, 2026 WL 444544 at *10 (Fla. Feb. 17, 2026). The Florida Supreme

Court also found “the outcomes suggested in the affidavit are speculative...” Appendix

A, Melvin Trotter v. State of Florida et al., --- So. 3d ---, 2026 WL 444544 at *10 (Fla.

Feb. 17, 2026) (citing, Heath v. State, 2026 WL 320522, at *3 (Fla. Feb. 3, 2026). As

to prong two, the Florida Supreme Court found that Trotter failed to identify an

alternative method of execution, as required by Glossip. 576 U.S. 863 (2015).

While the Florida Supreme Court seemingly recognizes that Trotter’s claim for

relief is not a “traditional method-of-execution” challenge, “the gist of his argument

remains that executing him by lethal injection – given the allegations he raises –

constitutes cruel and unusual punishment.” Appendix A, Melvin Trotter v. State of

Florida et al., --- So. 3d ---, 2026 WL 444544 at *10 (Fla. Feb. 17, 2026). The Florida

Supreme Court still found that Trotter must establish both prongs of Baze-Glossip to

obtain relief. Yet, the second prong, feasible alternative to execution, of this Court’s

Baze-Glossip test inevitably forecloses proper judicial review of maladministration of

4

the lethal injection protocol. Challengers seek investigation and enforcement of the

already established protocol. An alternative method of execution is impractical when

the challenge is that the department of corrections is failing to competently carry out

already established protocols. Maladministration challenges are in essence seeking

the alternative method, that the constitutionally accepted protocol be precisely

followed.

Invoking the Eighth Amendment’s prohibition against cruel and unusual

punishment does not serve as a “last-ditch effort” to escape punishment. Nor does

such claim expand or contort the Constitution’s prohibition against cruel and unusual

punishment. The protections of the Eighth Amendment apply to all that are punished,

especially those that have committed violent and cruel crimes and have been

sentenced to the most severe punishment. The Eighth Amendment also protects us

as citizens of this Country because it serves to protect “the dignity of society itself

from … barbarity.” Ford v. Wainwright, 477 U.S. 399, 410 (1986).

[SPACE INTENTIONALLY LEFT BLANK]

5

REASONS FOR GRANTING THIS PETITION

I.

TROTTER’S CASE PRESENTS AN EXTREME EXCEPTION TO THE

PRESUMPTION AGAINST JUDICIAL INTERVENTION IN THE

ELEVENTH HOUR BEFORE AN EXECUTION.

It is the role of the judiciary to ensure challenges to lawfully issued sentences

are resolved fairly and expeditiously. Bucklew v. Precythe, 587 U.S. 119, 150 (2019).

Trotter raises a claim for judicial review that could not have been brought at an

earlier time, therefore it is not an attempt to manipulate the judicial branch to delay

his execution.

Trotter presents this Court with a single question which this Court and only

this Court can resolve: whether Florida’s maladministration of their lethal injection

protocol violates the prohibition against cruel and unusual punishment. Similarly,

when determining whether this Court will grant Trotter’s Petition for Certiorari, this

Court should equally look to the four factors of a “traditional standard for a stay”

which includes: (1) whether there is a strong showing of success on the merits; (2)

whether there will be irreparable injury; (3) whether there will be substantial injury

to other interested parties; and (4) public interest. See, Bucklew v. Precythe, 587 U.S.

at 171-172 (Sotomayor, J. dissenting); Nken v. Holder, 556 U.S. 418, 425-426 (2009);

Hilton v. Braunskill, 481 U.S. 770, 777 (1987).

In addition to Trotter’s strong showing of success on the merits, as will be

discussed below, the imminent execution of Mr. Trotter being carried out in violation

of Florida’s lethal injection protocol causing a substantial risk of needless pain and

6

cruelty, presents harm that is irreparable. Inmates who will be executed by the

Florida Department of Corrections are also at risk of irreparable injury. Florida alone

accounted for 40% of all executions in the United States in 2025 and this year, the

governor has signed four death warrants already.

This pales in comparison to Florida’s desire to cut dangerous corners during

executions to ultimately put Trotter to death. There is not a substantial injury which

can be found to Florida’s interest. Lastly, the public has an interest in ensuring that

the State is in fact carrying out executions in Florida in accordance with the Eighth

Amendment. Florida’s public has an interest that Mr. Melvin Trotter will be executed

humanely and without needless pain and suffering.

This Court’s presumption against petitions in the eleventh hour before an

inmate is executed is inapplicable to claims asserting the imminent execution will

violate the Constitution when the Eighth Amendment violation is predicated upon

current actions and failures demonstrating a pattern of behavior during executions

by a state’s department of corrections.

Petitioner anticipates the State of Florida will argue that Trotter seeks to

evade justice and contort constitutional interpretation of the Eighth Amendment.

These arguments simply ignore the Florida Department of Corrections’ pattern of

significant protocol deviation by administering etomidate which appears to have

reached or surpassed its expiration. As to public interest, there is no greater a public

interest than when government wields its power and ends an inmate’s life. These

allegations also ignore that use of compromised etomidate presents irreparable harm

7

and cruelty upon those executed beyond the natural harm and pain which occurs

during death.

II.

MALADMINISTRATION CHALLENGES DIFFER IN NATURE TO

METHODS-OF-EXECUTION AND AS-APPLIED CHALLENGES.

A maladministration challenge neither asserts that the state’s chosen

execution method itself is unconstitutional nor that the method would be

unconstitutional as-applied to that particular inmate. Maladministration challenges

do not argue that the method itself is a violation of the Eighth Amendment but rather

the protocol deviation, or maladministration, presents a substantial risk or needless

pain and suffering. This differs significantly from a method-of-execution claim and

an as-applied claim. Trotter’s maladministration challenge is one that is systematic

in nature. Florida Department of Corrections protocol deviations appear to be deeply

engrained in the way in which they are conducting executions. This is a significant

difference between methods-of-execution and as-applied challenges. Method-ofexecution challenges are individual to the method and as-applied challenges are

individual to the person, whereas maladministration claims infect the process.

a. Baze v. Rees and this Court’s precedent cited within, provides

constitutional interpretations applicable to maladministration

challenges.

This Court looked at a challenge to Kentucky’s lethal injection procedure in

Baze v. Rees, in which this Court found “that petitioners [had] not shown that the

risk of an inadequate dose of the first drug substantial.” 553 U.S. at 53-54 (holding,

Kentucky’s lethal injection protocol satisfied the Eighth Amendment). The

8

petitioners in Baze, asserted “that there was a significant risk” if the lethal injection

procedures were not properly followed. Id. at 49. This is different than a

maladministration claim which asserts that the protocol is not being followed.

Although Baze was a challenge to the method of execution, this Court’s opinion

provides guidance to constitutional interpretations applicable to maladministration

challenges.

Future harm can qualify as cruel and unusual punishment. “[T]he conditions

presenting the risk must be ‘sure or very likely to cause serious illness and needless

suffering,’ and give rise to ‘sufficiently imminent dangers.’” Id. at 50 (citing, Helling v.

McKinney, 509 U.S. 25, 33, 34–35, (1993) (emphasis added)). “[T]here must be a

‘substantial risk of serious harm,’ and ‘objectively intolerable risk of harm’ that

prevents prison officials from pleading that they were ‘subjectively blameless for

purposes of the Eighth Amendment.’” Baze v. Rees, 553 U.S. at 50 (citing, Farmer v.

Brennan, 511 U.S. 825, 842, 846 and n.9 (1994)).

This Court further recognized that it is not a singular accident “for which no

man is to blame” that offends the constitutional protections. Id. at 50 (citing,

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463-464 (1947)). This Court

specifically wrote:

[H]owever, “a hypothetical situation” involving “a series of abortive

attempts at electrocution” would present a different case. In terms of

our present Eighth Amendment analysis, such a situation—unlike

an “innocent

misadventure—would demonstrate an “objectively

intolerable risk of harm” that officials may not ignore. In other words,

an isolated mishap alone does not give rise to an Eighth Amendment

9

violation, precisely because such an event, while regrettable, does not

suggest cruelty, or that the procedure at issue gives rise to a “substantial

risk of serious harm.” (internal citations omitted).

Id. at 50 (citing, Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 470-471 (1947)

(concurring opinion); Farmer v. Brennan, 511 U.S. 825, 842 (1994)) (emphasis added).

This precedent is directly applicable to maladministration challenges and

supports a finding that the execution of Melvin Trotter on February 24th will violate

the Eighth Amendment protections. However, because this Court in Baze was

determining whether the method of execution itself violated the Eighth Amendment,

this Court’s opinion goes on to require inmates to present an alternative method of

execution. This is incompatible with maladministration challenges.

b. Trotter has pled facts sufficient for a finding that Florida

Department of Corrections’ protocol deviations amount to risk that

is sure or very likely to cause serious illness and needless suffering,

giving rise to imminent danger during his execution on February

24th.

Although Trotter was denied public records to support his claim and an

evidentiary hearing to present his claim to the lower court, Trotter sufficiently pled

the use of expired etomidate was sure to present needless suffering giving rise to

sufficient imminent danger during his execution.

10

Etomidate provides a short duration of sedation. 2 Using etomidate which has

reached its expiration or surpassed its expiration creates a substantial risk of

needless pain and cruelty during the execution. In a clinical setting, “[p]atients given

etomidate and rocuronium may also regain consciousness after 5 minutes; however,

they remain paralyzed due to the longer duration of action of rocuronium. Patients

in this situation may be fully awake yet unable to alert bedside clinicians… 3”

The significance of using expired lethal chemicals was attested to by Dr. Daniel

Buffington in his affidavit filed along with Trotter’s demand for public records in the

circuit court. Appendix C, Signed Affidavit, Dr. Daniel Buffington. Dr. Buffington

affirmed that “[f]ailure to properly monitor and remove expired substances could

result in the use of substances with reduced pharmacologic effect or produce

unnecessary complications for the inmate or the abrupt and early termination of an

execution.” Appendix C, Signed Affidavit, Dr. Daniel Buffington.

2

Calvin Hwang, PharmD, BCEMP et al., Impact of paralytic choice on postintubation sedation and

analgesia in the emergency department, 82 (suppl 3), Am J. Health-Syst Pharm, Jun. 1, 2025, at

2929 (“about 3 to 5 minutes.”).

3 Calvin Hwang, PharmD, BCEMP et al., Impact of paralytic choice on postintubation sedation and

analgesia in the emergency department, 82 (suppl 3), Am J. Health-Syst Pharm, Jun. 1, 2025, at

2929, 2930 (Further indicating “[a]wareness has been reported in up to 7.4% of patients intubated

with rocuronium and is an event that may cause significant physiological and psychological

morbidity.”).

11

The State has argued that Dr. Buffington could only speculate that utilizing

expired drugs may produce unanticipated or unnecessary complications and could

result in unnecessary pain or discomfort prior to the inmate’s death. Their conclusion

is misleading. What is known is that expired drugs are compromised.

Uncompromised etomidate is necessary to render the person unconscious so that they

are not tortured. A more definite assertion is impossible because the person is dead.

The FDOC logs support that 7 of the 13 men executed between January 2025

and September 30, 2025, appear to have received expired etomidate by the Florida

Department of Corrections. See, Appendix D, FDOC Log Part 1; Appendix E, FDOC

Log Part 2. Etomidate is the first drug of the protocol used to “sedate” the person

being executed so that they do not feel the pain or torture of the second and third

drugs killing them. This suggests that of the people executed between January 2025

and September 30, 2025, that more than 50% of the executed men received doses of

etomidate that could have had the reduced pharmacologic effect thus not rendering

them unconscious but because of the second drug, rocuronium, they are paralyzed

and unable to signal to the execution team they are in distress above and beyond that

which is permissible by the constitution. The safeguards of the protocol, such as

consciousness checks, are ineffective in such a circumstance, a circumstance in which

the Florida Department of Corrections is not blameless. Those monitoring the

execution would not know that the sedative had reduced pharmacologic effect because

the second drug, rocuronium, is the paralytic causing muscle paralysis and the men

12

experiencing pain would be prevented from indicating the cruel suffering they are

experiencing.

The administration of what appears to be expired etomidate during executions

in Florida provides just the circumstance in which maladministration of lethal

injection protocol runs afoul with constitutional protections. Florida Department of

Corrections complacent approach to its duty to constitutionally carry out lethal

injection executions is not a mere “one-off” but rather a patterned series of significant

deviations which would render the men executed completely conscious and paralyzed.

This is the very type of undignified and torturous death this Court has condemned as

being examples of what would be considered unconstitutional. See, Bucklew 587 U.S.

at 132. What Trotter presents to this Court is not a type of pain that is inherently

part of death, he presents this Court a circumstance that is sure or very likely risk of

needless pain. Florida’s maladministration of their lethal injection protocol is the one

for which prison officials cannot render themselves subjectively blameless, for it is

the execution team which is directly responsible for maintaining and administering

the drugs used for the execution. The risk of needless pain caused by compromised

etomidate cannot rationally be considered unfortunate but inevitable and only

intensifies the sentence of death with cruel terror, pain, and disgrace. See, Baze, 553

U.S. at 48 (Thomas, J. concurring in judgment).

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III.

THE TWO PRONGS OF THE BAZE-GLOSSIP TEST DO NOT

ENCOMPASS

MALADMINISTRATION

CHALLENGES

TO

ACCEPTED PROTOCOLS.

This Court recognized in Glossip v. Gross, petitioners have the burden of

establishing that any risk of harm was substantial when compared to a known and

available alternative when asserting that the lethal injection method is

unconstitutional. 576 U.S. at 878. In Glossip, like in Baze, petitioners asserted that

the method of execution violated the Eighth Amendment protections. 576 U.S. 863.

Four years later, this Court in Bucklew v. Precythe, emphasized its rulings in both

Baze and Glossip and reaffirmed that all Eighth Amendment challenges to executions,

whether the entire method is challenged or the method as-applied to the inmate, must

satisfy both prongs of the Baze-Glossip test. The Baze-Glossip test creates conflict

between the test and this Court’s Eighth Amendment jurisprudence.

The Baze-Glossip test is inapplicable to inmates who challenge their imminent

execution when a state’s deviation from the accepted lethal injection protocol

supports a substantial risk of needless pain. Inmates will never satisfy the second

prong of Baze-Glossip requiring a feasible alternative be identified because a “protocol

deviation” challenge is neither a facially unconstitutional challenge nor an as-applied

challenge. The Baze-Glossip test prevents judicial scrutiny of a state’s protocol

deviation.

First, by the very nature of a maladministration challenge, inmates are

asserting that the accepted protocol would be the very alternative they are seeking.

Inmates seeking independent investigations into whether the department of

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corrections is carrying out executions in accordance with the constitution, are

prevented from any remedy. The very state contesting the assertion is the same entity

which stands as a roadblock from seeking reasonable relief. While departments of

corrections ordinarily have a presumption that they are carrying out their duties in

accordance with the constitution, the Baze-Glossip test, shields departments of

corrections from judicial scrutiny even when inmates have overcome such a

presumption. This Court’s jurisprudence conflicts with any ability for inmates to seek

any reasonable remedy.

Secondly,

an

alternative

method

of

execution

is

impractical

in

maladministration challenges. Simply, why would inmates have any confidence in a

department of corrections ability to follow a different protocol if it is not following the

one already in place? Without meaningful judicial scrutiny, after a pattern of

deviations which create a needless suffering, departments of corrections are allowed

to continue to act without accountability. The precedent set by this Court forecloses

inmates from challenging the dangerous conduct of the department of corrections.

This Court has referred to the safeguards and procedures put in place by states to

prevent needless torture and suffering. However, when departments of corrections no

longer comply with the safeguards, the protocols are meaningless.

Petitioner acknowledges that inmates are not entitled to a painless death. The

respondents are most certain to point out that methods of execution were seemingly

more painful at the time of the adoption of the Eighth Amendment. In that same vein,

executions were also public. Executions were not carried out in the secrecy of an

15

“execution chamber” in which even those that are witnessing the execution only see

a mere glimpse of what is occurring as the executioner, hidden from sight, injects

drugs from behind a wall. The Founding Fathers would equally be astounded by the

secrecy of governmental agencies taking the life of the condemned. In the State of

Florida, executions were carried out publicly until 1924. Fla. Stat. Ch. 9169 § 6124

(1924). Even after executions were removed from general public viewing, the

executions were “in the presence of a jury of twelve respectable citizens who shall be

requested to be present.” Fla. Stat. Ch. 9169 § 6125 (1924).

Florida’s impenetrable veil of secrecy concerning the way executions are being

conducted today, goes against the philosophies of originalism and exacerbates the

conflict created by the opinions in Baze and Glossip.

CONCLUSION

This Court should grant this petition to resolve the conflicting holdings of this

Court and resolve how this Court’s precedent applies to maladministration

challenges amounting to cruel and unusual punishment. It is this Court and this

Court alone that can resolve such a conflict.

Respectfully submitted,

/s/ Melody Jacquay

MELODY JACQUAY-ACOSTA

Florida Bar No. 1010248

Assistant CCRC-M

/s/ Ann Marie Mirialakis

*ANN MARIE MIRIALAKIS

Florida Bar No. 658308

Assistant CCRC-M

/s/ Mahham Syed

Mahham Syed

Florida Bar No. 1049535

Assistant CCRC-M

Counsels of Record for Petitioner

*Member of the Bar of the Supreme

Court

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